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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,280

STATE OF KANSAS,

Appellant,

v.

PROMISE DELON REDMOND,

Appellee.

SYLLABUS BY THE COURT

1.

Article I, § 10 of the United States Constitution provides that no state shall pass 

any ex post facto law. Ex post facto laws include retroactively applied legislation that 

makes more burdensome the punishment for a crime, after its commission.

2.

The constitutional prohibition on ex post facto laws applies only to penal statutes.

3.

To determine whether the retroactive application of a statutory scheme violates the 

Ex Post Facto Clause, a court first determines the legislature's intention. If a statutory 

scheme was intended to be punitive, it cannot be applied retroactively under any 

circumstances.

4.

If the legislature intended to enact a regulatory scheme that is civil and 

nonpunitive, the next inquiry is whether the statutory scheme is so punitive either in 
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purpose or effect as to negate the State's intent to deem it civil. If a statutory scheme is

punitive in effect, the Ex Post Facto Clause prohibits it application retroactively.

5.

The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., as amended in 

2011, is punitive in effect, and the amended statutory scheme cannot be applied 

retroactively to any sex offender who committed the qualifying crime prior to July 1, 

2011.

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed April 22, 2016.

Affirmed.

Brett Watson, assistant district attorney, argued the cause, and Jodi Litfin, assistant district 

attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for 

appellant. 

Jeffrey G. Dazey, of Northeast Kansas Conflict Office, argued the cause and was on the brief for 

appellee.

The opinion of the court was delivered by

JOHNSON, J.: The State of Kansas appeals the district court's dismissal of criminal 

charges against Promise Delon Redmond for failing to register as a sex offender, as 

required by the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. The 

district court determined that Redmond had completed his registration requirements at the 

time of the alleged crimes because the 2011 amendments to KORA could not be 

retroactively applied to Redmond without violating the Ex Post Facto Clause of the 

United States Constitution.
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Pursuant to K.S.A. 20-3018(c), we transferred the case from the Court of Appeals 

and decide it the same day as two related cases, Doe v. Thompson, 304 Kan. ___, ___ 

P.3d ___ (No. 110,318, this day decided), and State v. Buser, 304 Kan. ___, ___ P.3d ___ 

(No. 105,982, this day decided). Consistent with our holdings in those companion cases, 

we determine that KORA's statutory scheme after the 2011 amendments was so punitive 

in effect as to negate the implied legislative intent to deem it civil, so that the Ex Post 

Facto Clause precludes its application to any sex offender who committed the qualifying 

crime prior to July 1, 2011. Accordingly, we affirm the district court.

FACTUAL AND PROCEDURAL OVERVIEW

On December 13, 2001, Redmond pled no contest to one count of indecent 

solicitation of a child 14 to 15 years old, then a severity level 7, person felony. See 

K.S.A. 21-3510 (Furse 1995). Redmond was sentenced to a term of 13 months'

imprisonment, but the district court suspended his sentence and placed Redmond on 

probation for 24 months. The district court also found that Redmond was required to 

register as a sex offender. 

Under the 2001 version of KORA, Redmond was required to register for 10 years 

"from the date of conviction." K.S.A. 2001 Supp. 22-4906(a)-(b). Accordingly, prior to 

the 2011 amendments, Redmond's registration term would have expired on December 13, 

2011. Under the 2011 amendments, Redmond's crime of conviction requires registration 

for 25 years, which would make his term of registration expire in 2026. K.S.A. 2011 

Supp. 22-4906(b)(1)(B). 

On November 6, 2012, the State charged Redmond with three counts of violating 

KORA. Each count alleged Redmond failed to report in person: the first failure to report 

on or about September 1, 2012; the second failure to report on or about March 1, 2012;
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and the third failure to report on or about June 1, 2012. All three dates were outside the 

original 10-year registration period.

Redmond filed three motions to dismiss, two of which raised procedural due 

process issues that are not involved in this appeal. The motion to dismiss at issue here 

raised the question of whether the charges against Redmond violated the constitutional 

prohibition against ex post facto laws. The State responded to the motions, Redmond 

filed a notice of additional authority, and then the parties requested leave to submit the 

motion on their briefs. Thereafter, the district court granted Redmond's motion to dismiss 

on ex post facto grounds and declared the other motions to be moot. The State timely 

appealed to the Court of Appeals, and this court transferred the appeal.

RETROACTIVE APPLICATION OF KORA 2011 AMENDMENTS

The 2011 version of KORA's statutory scheme stated that it applied to any person 

who was convicted of any sexually violent crime on or after April 14, 1994. See K.S.A. 

2011 Supp. 22-4902(b) (defining "sex offender"). Indecent solicitation of a child is 

statutorily designated as a "sexually violent crime." K.S.A. 2011 Supp. 22-4902(c)(6).

Accordingly, Redmond's 2001 conviction purportedly made him subject to the additional 

and enhanced provisions of the 2011 statutory scheme, including the increased time 

period from 10 years to 25 years for first-time offenders. 

But legislative acts must comport with our federal and state constitutions, and 

Article I, § 10, of the United States Constitution provides, in relevant part, that "[n]o 

State shall . . . pass any . . . ex post facto Law." One category of ex post facto laws is 

"'"any statute . . . which makes more burdensome the punishment for a crime, after its 

commission."'" State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014) (quoting Beazell v. 

Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 2d 216 [1925]). Yet, "[t]he 
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constitutional prohibition on ex post facto laws applies only to penal statutes." State v. 

Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). So the question becomes whether 

KORA is punitive. 

The district court determined that the amended statutory scheme was "uniquely 

punitive" for Redmond and that the subsequently added burdens placed upon Redmond 

for a previously committed crime violated the Ex Post Facto Clause.

Standard of Review

The district court relied on constitutional grounds to find that the 2011 version of 

KORA could not be applied to Redmond. "When the application of a statute is challenged 

on constitutional grounds, this court exercises an unlimited, de novo standard of review. 

State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996)." State v. Cook, 286 Kan. 766, 

768, 187 P.3d 1283 (2008).

Analysis

In reaching its decision, the district court applied the analytical framework from 

this court's prior decision in Myers and the United States Supreme Court's prior decision 

in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). That framework 

is referred to as an "intent-effects" test. See, e.g., Moore v. Avoyelles Correctional 

Center, 253 F.3d 870, 872 (5th Cir. 2001).

Under the intent-effects test, a court must first determine legislative intent. "If the 

intention of the legislature was to impose punishment, that ends the inquiry." Smith, 538 

U.S. at 92. The statute is penal and cannot be applied retroactively.
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But if the legislature's intention was to enact "a regulatory scheme that is civil and 

nonpunitive," the court must then "examine whether the statutory scheme is '"so punitive 

either in purpose or effect as to negate [the State's] intention" to deem it "civil."'" Smith, 

538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. 

Ed. 2d 501 [1997]). For the effects part of the test, the court utilizes the factors identified 

in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644 

(1963) (Mendoza-Martinez factors), as "useful guideposts." Smith, 538 U.S. at 97. 

In determining legislative intent, the district court first noted that KORA does not 

contain an expressed statement of purpose. The district court then looked to Myers, which 

had held that the legislative history of the 1994 Kansas Sex Offender Registration Act 

(KSORA) suggested that the act served the nonpunitive purpose of public safety. 260 

Kan. at 681. The district court then determined that the Kansas Legislature also "likely 

meant" to enact KORA as a "civil, regulatory scheme," and proceeded to the "effects" 

portion of the test. In Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this 

day decided), slip op. at 31, we observed that we had not been pointed to any subsequent 

legislative history for KORA that would contradict Myers' determination of the 

nonpunitive legislative intent for KSORA. In like fashion, we affirm the district court's 

holding below that the legislative intent of KORA was nonpunitive. 

For the "effects" analysis, the district court was guided by the Mendoza-Martinez

factors, which it recited from Myers, as follows: 

"'[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it 

has historically been regarded as punishment, [3] whether it comes into play only on a 

finding of scienter, [4] whether its operation will promote the traditional aims of 

punishment—retribution and deterrence, [5] whether the behavior to which it applies is 

already a crime, [6] whether an alternative purpose to which it may rationally be 
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connected is assignable for it, and [7] whether it appears excessive in relation to the 

alternative purpose assigned.'" Myers, 260 Kan. at 681.

With respect to the first factor, the district court opined that the in-person reporting 

requirements and the registration fees assessed subjected KORA registrants to an 

affirmative disability or restraint. The court pointed out that a person who lives, works, 

and attends school in different counties would have to report in person 12 times a year, 

which resembled parole or probation. The court found the reporting requirements 

imposed upon an offender's time and served as a physical restraint. Further, the court 

noted that the registration fees were a substantial cost to the registrant, adding up to 

between $2,000 and $6,000 over the course of the unalterable 25-year registration period. 

Moreover, that cost would be particularly burdensome if the offender suffered 

employment difficulties because of the notification provisions of KORA. The district 

court also pointed to other states which had found similar statutory schemes to work an 

affirmative disability or restraint on the offender.

With respect to the historical nature of the punishment, the district court found 

persuasive the analogy to the colonial punishment of shaming made by the Indiana court 

in Gonzales v. State, 980 N.E.2d 312, 318-19 (Ind. 2013). The district court also noted 

that Myers had quoted from Nathaniel Hawthorne's The Scarlet Letter, indicating the 

historical aspect of treating public notification as punishment.

For the rest of the factors, the district court did not make a detailed recitation on 

the record, referring on occasion to the defendant's arguments. With respect to 

excessiveness, the district court appeared to find that the added requirements were 

particularly excessive and punitive when applied to Redmond.
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What the district court did not clarify is that we are applying a federal 

constitutional provision, so that Kansas state courts are duty-bound to follow the 

decisions of the United States Supreme Court when interpreting the United States 

Constitution. See, e.g., Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied

361 U.S. 846 (1959) (Under Article VI of the United States Constitution, "the 

interpretation placed on the Constitution and laws of the United States by the decisions of 

the supreme court of the United States is controlling upon state courts and must be 

followed.").

Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender 

Registration Act (ASORA), utilizing the intent-effects test. The Court found the intent of 

the Alaska Legislature was to enact a civil and nonpunitive law. Then, applying five of 

the Mendoza-Martinez factors, Smith determined that the offenders had failed to show 

"that the effects of the law negate Alaska's intention to establish a civil regulatory 

scheme," so that the act was nonpunitive and its retroactive application did not violate the 

Ex Post Facto Clause. 538 U.S. at 105-06. Accordingly, for us to find KORA punitive, 

we must find it factually distinct from ASORA.

In Thompson, which is filed this same date, we listed the significant differences 

between the 2011 KORA and the ASORA reviewed in Smith, some of which were 

mentioned by the district court. Those differences included the following: KORA applies 

to a broader group of offenders; KORA requires frequent in-person reporting regardless 

of whether registration information has changed since the last reporting; KORA requires 

a longer registration period for some first-time offenders; KORA requires additional 

registration information; KORA requires changed information to be reported in person 

within 3 days; KORA requires additional information to be disseminated to the public; 

KORA imposes potentially costly registration fees; KORA requires advance notice for 

travel outside the United States; KORA requires annual driver's license renewal and 
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offenders subject to KORA must have a distinguishing number on their licenses; parents 

subject to KORA must disclose that status in any proceeding determining child custody, 

residency, and parenting time; and KORA imposes severe, person felony sanctions for 

violating any KORA provision. Thompson, slip op. at 32-35.

Then, we reviewed the factually distinct KORA, as amended in 2011, in light of 

the Mendoza-Martinez factors, in the manner employed by Smith, albeit with a different 

end result. We first determined that the statutory scheme resembled traditional forms of 

punishment by being akin to public shaming and by replicating the circumstance of being 

on probation or parole. Thompson, slip op. at 37-38. The latter circumstance also imposed 

an affirmative disability or restraint on the offender, as did the difficulties in obtaining

employment and housing caused by KORA. Moreover, the financial obligations were 

punitive in effect, when viewed from an offender's perspective. Slip op. at 39-40. Next, 

we determined that the current KORA had a deterrent effect and was retributive in 

character, before opining that KORA was not rationally connected to the nonpunitive 

purpose of public safety. In other words, the statutory scheme is excessive in relation to 

its regulatory purpose. Slip op. at 43. Consequently, we determined that the 2011 version 

of KORA is punitive in effect and that the amended statutory scheme cannot be applied 

retroactively to any sex offender who committed the qualifying crime prior to July 1, 

2011. Slip op. at 44.

Applying Thompson's holding to the facts before us, we find that Redmond's 10-

year registration period could not be retroactively increased to 25 years; that Redmond 

had completed his registration requirements under the law in effect when he committed 

his crime by the dates of his alleged failure to report; and that, without a statutory duty to 

report, Redmond could not be prosecuted for failing to report. Consequently, the district 

court's dismissal of the charges against Redmond is affirmed.
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Affirmed. 

MICHAEL J. MALONE, Senior Judge, assigned.1

* * *

BILES, J., dissenting: I dissent from the majority's decision in this case for the 

reasons more fully stated in my dissent in Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ 

(No. 110,318, this day decided). As explained there, I believe the majority asks and 

answers the wrong question. Whether the Kansas Offender Registration Act (KORA) as 

amended in 2011 violates the Ex Post Facto Clause of the United States Constitution is 

entirely a federal question. We should apply the abundant federal caselaw where possible 

to inform the analysis. The majority's approach disregards that caselaw. 

As explained in my Thompson dissent, the applicable federal caselaw considers 

similar burdens under other offender registration schemes. It compels me to conclude that 

the 2011 KORA amendments do not violate the federal Ex Post Facto Clause and the 

United States Supreme Court would so hold. Accordingly, I must dissent. 

NUSS, C.J., and LUCKERT, J., join in the foregoing dissent. 

 

1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 110,280 under 

the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court 

created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of 

Appeals.